November 21, 2011

Out of Many

IN A PIECE in The New York Times outlining some of the themes in their new book, Desmond S. King and Rogers M. Smith argued that for the last decade the two major political parties have “pretty much agreed not to talk about race.” Democrats eschew the subject because “colorblind positions are far more politically popular” than the race-conscious policies they favor; and Democratic reticence “leaves modern Republicans with little to criticize, lest they appear to be race-baiting, so they too keep quiet.” But all this may change if the Supreme Court decides to review a challenge to affirmative action policies at the University of Texas.

In the case currently being appealed to the Supreme Court, a white student named Abigail Fisher charges that the University of Texas at Austin discriminated against her by considering race in admissions. Fisher further argues that the school was able to achieve sufficient racial diversity by giving a preference to socio-economically disadvantaged students and automatically admitting those graduating in the top 10 percent of their high school class. When the Supreme Court affirmed the ability of universities to use race in Grutter v. Bollinger (2003), Texas put racial considerations back into the equation, a move which Fisher charges is unconstitutional.

In the lower courts, the Justice Department filed an amicus brief in favor of race-conscious policies, a move that received little notice. But if the Supreme Court decides to hear the case, it will be fascinating to see how President Obama handles the issue. As King and Smith argue in Still a House Divided, Obama has thus far skillfully avoided taking a firm position on affirmative action programs. In The Audacity of Hope, he supported affirmative action programs that “open up opportunities otherwise closed to qualified minorities without diminishing opportunities for white students.” But what about cases like Abigail Fisher’s, where racial preferences unmistakably do diminish opportunities for some whites?

Obama generally leans “rhetorically toward the color-blind camp,” King and Smith write. When asked during the presidential campaign whether his own daughters deserve affirmative action in college admissions, Obama said that they do not, and should “be treated by any admissions officer as folks who are pretty advantaged.” He added that in his view poor whites also deserve a leg up. As president, when asked why he did not do more to address black unemployment, he responded, “I can’t pass laws that say I’m just helping black folks. I’m the president of the United States.”

But the tricky politics of this issue is only part of what Obama needs to consider. The bigger philosophical question, as King and Smith argue, is how to bring about the goal of “One America.” From the very early days of the republic, they note, the goal of promoting unity within diversity has animated American leaders. On July 4, 1776, the Continental Congress authorized John Adams, Benjamin Franklin, and Thomas Jefferson to recommend a design for a Great Seal of the United States, and the committee proposed the motto “E Pluribus Unum,” or “Out of many, one.” The theme is particularly important for President Obama, who consistently returns to the significance of national unity.

Failing to do anything to address our nation’s profound legacy of discrimination will leave the country racially divided, King and Smith correctly argue, as blacks continue to be twice as likely as whites to be poor and unemployed, have a median income that is three-fifths that of whites, and increasingly attend racially segregated schools. King and Smith accurately survey the history and the evolution of American thinking on race, from color-conscious white supremacist policies (slavery, Jim Crow, and immigration rules that before 1965 imposed quotas based on national origin) to color-blind policies (Brown v. Board of Education, and the Civil Rights Act) back to race-conscious affirmative action policies (efforts to promote racial diversity in employment, government contracting, and college admissions).

At the same time, explicit preferences based on race are problematic in a nation where, as Obama pointed out in his famous campaign speech on race, many whites “don’t feel that they have been particularly privileged by their race,” and feel an anger toward preference programs, an emotion that cannot be dismissed as “misguided or even racist.” Long before Obama, Dr. Martin Luther King, Jr., saw both sides of this dilemma—the need to address racial history without opening up new wounds. In Why We Can’t Wait, King remarked that “the nation must not only radically readjust its attitude toward the Negro in the compelling present, but must incorporate in its planning some compensatory consideration for the handicaps he has inherited from the past ... For it is obvious that if a man is entered at the starting line in a race three hundred years after another man, the first would have to perform some impossible feat in order to catch up with his fellow runner.” But then he rejected a race-specific Bill of Rights for the Negro as divisive, and instead backed a Bill of Rights for the disadvantaged of all races. Blacks would disproportionately benefit from such a measure, he argued, but “it is a simple matter of justice that America, in dealing creatively with the task of raising the Negro from backwardness, should also be rescuing a large stratum of the forgotten white poor.” This position was consistent with the platform of the Democratic National Convention in 1964, which rejected “any policy of quotas or ‘discrimination in reverse.’”

Of course King hardly avoided the issue of race: he fought for outlawing race discrimination in employment, housing, voting, education, and the criminal justice system—all issues that Desmond King and Rogers Smith take up in their book. They are correct to suggest that we are not living in a “postracial” period, which is why we need to beef up the enforcement of anti-discrimination laws, including the Civil Rights Act of 1991, which shifts the burden of explaining why racial imbalances in the work force are justified to employers. But in addressing the legacy of past discrimination, King was right to reject explicit racial preference in favor of programs that disproportionately benefit those groups that have been the victims of discrimination.

Addressing a history of discrimination—without explicitly using race—is precisely what the University of Texas sought to do in the late 1990s through the entering class of 2004. The top 10 percent plan and the socio-economically based affirmative action program did not explicitly favor students based on race or ethnicity, though they obviously were designed in part to indirectly boost racial diversity. King and Smith do not approve of this approach. They describe the top 10 percent plan as “contorted,” a disingenuous program employing “euphemisms and evasions.” But efforts to promote diversity, and to address our history of discrimination indirectly, with race used only as a last resort, promote racial unity more effectively than either outright racial preferences or laissez-faire policies that completely ignore racial outcomes. By including disadvantaged whites, moreover, economic affirmative action plans address a second critical divide—the economic chasm—that is, according to Madison’s Federalist 10, “the most common and durable source of factions.” Today class differences are far and away the most important source of unequal opportunity.

The biggest lacuna in this otherwise fine book is that the authors fail to recognize that after moving from segregation to colorblind policies to race conscious programs, change is in the air again. The pressure to wind down race-conscious affirmative action programs is coming not only from the courts, but also from voter initiatives. With bans on racial preferences already in place in California, Washington, Florida, Michigan, Nebraska, and Arizona, Oklahoma voters will decide in 2012 whether to bar affirmative action in that state. As intermarriage rates rise, and the most vicious legacy of past discrimination fades with time, we may be entering a new era. It is not “postracial” in the sense that powerful laws addressing racial discrimination will remain necessary. It is not even post-affirmative action, in the sense that affirmative steps continue to be needed to address our nation’s history. But we may, in the near future, move toward a new vision of affirmative action policies, which stress class, more than race, as the United States continues in its struggle, as King and Smith put it, “to make E Pluribus Unum not just its venerable national motto, but also its twenty-first century achievement.”

Richard D. Kahlenberg, a senior fellow at The Century Foundation, is author of The Remedy: Class, Race, and Affirmative Action (1996) and editor of Rewarding Strivers: Helping Low-Income Students Succeed in College (2010).